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What the President Can Do on
Immigration If Congress Fails to Act
By Marshall Fitz July 2014
What the President
Can Do on Immigration
If Congress Fails to Act
By Marshall Fitz July 2014
1 Introduction and summary
6 The scope of the immigration enforcement problem
10 The legal authority for executive action on immigration
15 Exercising discretion in the context of immigration
24 The equities: Who should be covered by deferred action?
30 Conclusion
32 Endnotes
Contents
1 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
Introduction and summary
This report contains a correction. See page 30.
With immigration reform legislation stalled, and deportations reaching a crisis
level, President Barack Obama asked his new secretary of homeland security,
Jeh Johnson, to conduct a review of the agencys deportation policies in order
to identify ways to make the system more humane.
1
While that review process
continues,
2
this report provides a roadmap for executive action on immigration by
analyzing the scope of the problem, the legal authority underpinning administra-
tive reforms, the various administrative mechanisms available to the president,
and the groups of individuals who could still be protected if Congress fails to act.
In June 2013, the Senate passed a historic bipartisan immigration reform bill: the
Border Security, Economic Opportunity, and Immigration Modernization Act,
or S. 744. Te legislation would revamp our legal immigration system and create a
pathway to citizenship for the 11.7 million unauthorized immigrants living in the
United States.
3
Tis long overdue reform was embraced by virtually all stakehold-
ers in the debate and supported by strong majorities of American voters from
across the political spectrum.
4

Since the Senate bill passed, however, House Republican leaders have talked
about the need for reform but refused to bring legislation to the foor. For exam-
ple, House Speaker John Boehner (R-OH) circulated a set of standards designed
to guide the House consideration of immigration reform legislation in January.
5

Less than a week later, he put those standards on hold, declaring that his partys
distrust of President Obama made it too difcult to consider reform this year.
6

While Congress has repeatedly tried and failed to reform our immigration laws
over the past 10 years, Congressalong with successive presidential administra-
tionshas nonetheless succeeded in escalating the enforcement of the existing
broken laws. And the impact of that increased enforcement on American families,
businesses, and communities has reached a crisis level. Two-thirds of all unauthor-
2 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
ized immigrants currently living in the United States have resided here for more
than a decade and are long setled and well integrated into our communities.
7
Yet
immigrants are being deported in record numbers:
8
More than 4 million people
have been removed from the United States since 2001, with 2 million people
removed during the Obama administration alone.
9

Te removal of these 2 million people is equivalent to wiping out the entire com-
bined populations of Boston, Miami, Seatle, and St. Louis.
10
Moreover, an estimated
200,000 parents of U.S. citizen children were deported over the two-year period
between 2010 and 2012.
11
Te Applied Research Center found that 5,100 children
of immigrants were in the foster care system in 2011 because their parents were
detained or deported. Tese removals devastate communities and leave broken
families behind in the United States.
12
And these enforcement eforts have come
at a heavy cost to taxpayers: Te United States now spends $3.5 billion more on
immigration and border enforcementa total of nearly $18 billion per year
13
than
it does on all other federal law enforcement combined. Tat breathtaking fgure is
higher than the annual gross domestic product, or GDP, of 80 diferent countries.
14

President Obama has argued that he does not have the authority to simply stop
deportations for all undocumented immigrants.
15
In one critical sense, he is right:
Only legislation can provide a permanent solution that includes a path to legal sta-
tus and eventual citizenship for the 11.7 million unauthorized immigrants living
in the country.
16
Any administrative relief via executive action is temporary, could
be reversed by a subsequent administration, and likely cannot cover the entire
undocumented population. In other words, such relief would, almost by defni-
tion, be inadequate and incomplete.
But as this report highlights, President Obama can still do much more admin-
istratively to make immigration enforcement more rational and humane while
Congress delays. Tis is because the administration has wide latitude in establish-
ing its enforcement priorities, including deciding how to spend the resources
that Congress appropriates for immigration enforcement, and whether to pursue
enforcement against certain individuals. It also has the discretion to identify indi-
viduals with certain equitiesmitigating factors such as family or community ties,
employment history, or length of residence in the United Statesand authorize
them to afrmatively request temporary relief from deportation.
3 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
Tis report begins by providing an overview of the current problems facing our
broken immigration systemincluding a profle of unauthorized immigrants,
a review of the rise in enforcement, and a description of the legislative gridlock
delaying reform. It then discusses the legal authority for executive action on immi-
gration and explores several administrative mechanisms that the president could
adopt to make enforcement more sensible and humane. Tese mechanisms can be
divided in to two related but distinct types of policies:
1. Enforcement reforms, which involve prioritizing how and whether enforce-
ment is conducted when someone comes into contact with the authorities.
20

Regardless of whether Congress moves forward with immigration reform legis-
lation, DHS should adopt these types of reforms to our enforcement policies as
soon as possible.
Afrmative relief: A process by which low-priority individualsfor
example, those with extensive community ties or DREAMers, young
unauthorized immigrantscan come forward to seek temporary
protection from deportation. The Deferred Action for Childhood Ar-
rivals, or DACA, program, which President Obama created in 2012 to
allow eligible young unauthorized immigrants to apply for a two-year
reprieve from deportation and a work permit,
17
is one such process.
Deferred action: A form of armative relief that allows individuals
who have committed no serious crimes to come forward and request
temporary protection against deportation and work authorization.
Deferred action has generally been granted to individuals who have
appealing humanitarian factors.
18

Deferred enforced departure, or DED: A presidential designa-
tion that nationals from a specic country are to be protected from
removalLiberians are one current example
19
based on a variety of
dierent factors. Individuals who receive DED are eligible to apply for
employment authorization.
Enforcement reforms: Policies that dene who and under what
circumstances people are put into removal proceedings once they
come into contact with immigration enforcement ocials. These
include policies that would, for example, prioritize the apprehension
of individuals who were convicted of felonies over individuals who
were arrested for trac violations and policies that promote the use
of alternatives to detention.
Parole in place, or PIP: Parole is a discretionary authority that
allows the U.S. Department of Homeland Security, or DHS, to permit
people to enter the country who are otherwise not eligible to be
admitted. Parole in place is a variation of parole that allows those
who are already in the country without authorization to be granted
temporary legal status.
Prosecutorial discretion: The executive branchs discretion to make
choices regarding who to investigate, arrest, and prosecuteand who
not tobased on judgments of how best to allocate limited resources.
In the immigration context, prosecutorial discretion is applied across a
range of decisions at each stage of the enforcement process.
Definitions
4 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
2. Afrmative relief, which involves identifying low-priority individuals and creat-
ing a procedure for them to come forward and afrmatively seek temporary
protection from deportation.
Tis report focuses primarily on the afrmative relief policies that are available to
the administration. It describes three mechanisms that have been used to grant
afrmative relief in other contexts: deferred action, parole in place, and deferred
enforced departure. Te report then evaluates them according to two basic crite-
ria: the programs potential impactboth its size and the ability to maximize it
and workabilityits fexibility and feasibility.
Although all three mechanisms have certain advantages, deferred action carries
the fewest operational restrictions and is therefore the optimal mechanism both
for protecting the broadest number of individuals and for successful and efcient
implementation.
Lastly, this report examines the various equities that the president should con-
sider when deciding who to designate as low priorities and who to protect from
removal. Tese factors include:

Likelihood of legislative protection, such as people who would be eligible for
legalization under S. 744
21

Family ties, such as undocumented parents of children living in the United
States or people with a qualifying relationship that would make them eligible for
permanent residency

Employment background, such as workers from industries with large undocu-
mented workforces

Duration of residence, such as individuals who have been living in the United
States for enough time to have deep roots in and ties to the community
According to Congressional Budget Ofce, or CBO, estimates for S. 744, a pro-
gram based on the likelihood of legislative protection could cover as many as 8.3
million people.
22
Tere are an estimated 4.7 million undocumented parents with
a minor child living in the United States, including 3.8 million whose children are
citizens.
23
Estimates of the undocumented workforce range from 6.4 million to 8
million, with nearly 1.5 million working in the retail trade sector and more than 1
million in the agricultural sector.
24
Finally, almost 7.5 million unauthorized immi-
grants have lived in the country for more than a decade.
25

5 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
Because an immigrant may have more than one of these equitiesfor example, an
agricultural worker may have been here for more than a decadethese numbers
are not additive. Either way, they point toward a large number of people with
strong equities who could be protected from deportation.
By expanding the use of deferred action beyond DACA to other individu-
als with compelling equities, President Obama could help stabilize families,
communities, and local economies across the country. It would also make our
country safer by ensuring that resources are focused on individuals who have
commited serious crimes and pose a danger to society. Such action would be,
by defnition, incomplete and the need for meaningful legislative reforms would
remain. But it would help begin the process of fxing the system and is a lawful,
just, and necessary response to an immigration enforcement crisis that Congress
has cultivated through inaction.
6 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
The scope of the immigration
enforcement problem
A profile of unauthorized immigrants
To understand our broken immigration system, we must frst understand the
unauthorized population: As of 2012, almost 7.5 million undocumented immi-
grants or nearly two-thirds of the total undocumented population had been living
in the country for more than a decade, and 9.95 millionor 85 percenthad
been here for more than fve years.
26
According to Pew estimates, 40 percent of the
unauthorized population entered the country legally but overstayed their visas,
which is only a civil, rather than a criminal, ofense.
27
Although the media tends to portray unauthorized immigrants as if they all live in
the same apartment building, cut of from the rest of the population, the truth is
that unauthorized immigrants live in every state. And many unauthorized immi-
grants live in mixed-status familiesi.e., with family members who have status,
including U.S. citizens or legal permanent residents. In all, 9 million U.S.-born citi-
zens live with at least one undocumented family member, and 16.6 million people
in the United States live in mixed-status families.
28
Unauthorized immigrants live
in our neighborhoods, sit in our pews, work alongside us, and go to school with
our kids.
29

Further complicating the issue is the reality that hundreds of thousands of unau-
thorized immigrants have a legitimate claim to a permanent visa through either
their spouse or parent. Tey are blocked, however, from pursuing legal status by a
Catch-22 provision that Congress enacted in 1996.
30
In order to apply for perma-
nent residence on the basis of their relationship, they must leave the United States
and apply at a consulate abroad. But as soon as they leave the country, they trigger
a three-yearor, in most cases, 10-yearbar on re-entering the country. While
there are hardship waivers available, the eligibility standard is extremely high.
31
Nine million U.S.-
born citizens live
with at least one
undocumented
family member.
7 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
The rise of enforcement
Te growth and long-setled nature of our unauthorized population is in part
a product of our nations signifcantly outdated immigration laws. Te last real
atempt to deal with the unauthorized population was the Immigration Reform and
Control Act of 1986,
32
and the last overhaul of the legal immigration system, which
set the current levels for legal immigration, was the Immigration Act of 1990.
33

Current immigration law grants only 5,000 employment-based visas per year for
lesser-skilled immigrants. As a practical mater, that means there is virtually no legal
mechanism for lesser-skilled immigrants to come work in the United States on a
permanent basis. And even people with a close relative in the United States face
visa waiting times that range from a few years to two decades for certain Mexican
and Filipino nationals.
34
For many immigrants, the choice has been between enter-
ing the United States without authorizationor overstaying a temporary visain
order to support their families or face a future without opportunity.
Paradoxically, our nations own border enforcement policies have contributed
to the rise in unauthorized immigrants living in the United States. Prior to 1993,
the southern border was relatively porous, and individualsmostly malefrom
countries south of the U.S. border would come to the United States for a season
and then return home to their families in a cycle that scholars have termed circu-
larity. But starting in 1993, the United States began what has now been a two-
decade efort to fortify the border, making it harder to move back and forth.
35

Te increased difculty, cost, and danger associated with crossing the border that
resulted from this build up prompted many immigrants to bring their families to
the United States and setle here permanently. Te number of unauthorized immi-
grants living in the country rose steadily, from an estimated 1.2 million in 1990 to
a high of 12 million in 2007.
36

Meanwhile, there has been a sharp increase in interior immigration enforcement,
particularly afer the terrorist atacks of 9/11.
37
Since 2001, we have deported
more than 4 million people, with 2 million people removed during the Obama
administration alone. Te government is now deporting nearly 400,000 people
per year on average.
38

8 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
On the southern border, the Border Patrol has moved away from a policy of catch
and release, also known as voluntary return, which allowed people apprehended
while atempting to cross the border to return home without serious consequence,
to a Consequence Delivery System, whereby most of those apprehended face
serious administrative or criminal consequences. In the Tucson, Arizona sector,
for example, 90 percent of those apprehended now see penalties through the con-
sequence system. Tis includes deportations via administrative mechanisms such
as reinstatement of removal and expedited removal, as well as criminal prosecu-
tions for unlawful entry and re-entry.
39

In fact, data from the Transactional Records Access Clearinghouse, or TRC, shows
that more than half of all federal convictions so far in fscal year 2014 were immigra-
tion related.
40
And according to the Pew Research Center, unlawful re-entry convic-
tions have seen a 13-fold increase since 1992.
41
Classifying unlawful re-entry as a
felony puts it on par with far more serious crimessuch as grand thef or violent
crimesand distorts the picture of who these immigrants are. Te vast majority are
not dangerous criminals but are simply returning to their families
and homes and pose absolutely no threat to society.
42

Tis severe immigration enforcement system has wreaked havoc
on families and communities.
43
According to the Applied Research
Center and Colorlines, 200,000 parents of U.S. citizen children
were deported between 2010 and 2012, and 5,100 children of
deported immigrants were in the foster care system as of 2011.
44

Severe immigration enforcement has also come with signifcant fs-
cal costs to the nation: As the Migration Policy Institute illustrates,
the United States now spends more on immigration enforcement
agencies each yearclose to $18 billionthan all other federal
law enforcement combinedaround $14 billion.
45
Legislative gridlock
As enforcement has ramped up and the unauthorized popula-
tion has become even more deeply rooted in the United States,
policymakers have repeatedly failed to reach an agreement on a
solution for immigration reform. President George W. Bush and
President Vicente Fox of Mexico were on the verge of a historic
immigration accord in 2001 that would have addressed the

4 million immigrants have been deported since
2001
46

Nearly 2 million have been deported in just the
last 5 years
47

Nearly 400,000 immigrants are deported each
year on average
48

More than 200,000 parents of U.S. citizen chil-
dren were deported between 2010 and 2012
49

More than 5,100 U.S. citizen children were in
foster care in 2011 because their parents were
deported
50

$17.9 billion is spent each year on border and
immigration enforcement, $3.5 billion more
than on all other federal law enforcement
combined
51
Enforcement by the numbers
9 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
undocumented population, but it derailed afer the 9/11 atacks. Congress failed
to enact comprehensive immigration reform bills in 2006 and 2007 that would
have provided a pathway to citizenship for unauthorized immigrants, more border
security, and an overhaul of our legal immigration system.
52
Te House passed the
DREAM Act in 2010 to give young unauthorized Americans a path to citizenship,
but the bill failed to overcome a Republican flibuster in the Senate.
53

More recently, the Senate passed a historic and bipartisan comprehensive immi-
gration reform bill, S. 744, in June 2013.
54
Since then, the House has stalled,
refusing to consider a vote on the Senate bill, with House Republicans dragging
their feet on introducing their own proposal.
55
Te House Republican leadership
foated a series of standards, laying out their vision of immigration reform in late
January, but Speaker Boehner put the legislative deliberations on hold one week
later, arguing that he could not move forward on immigration because his party
did not trust President Obama to enforce the laws.
56

Despite the present legislative gridlock, there is a broad bipartisan consensus
among voters that we must reform our immigration laws and that a central com-
ponent of such reform includes creating a path for undocumented immigrants to
register, undergo background checks, and earn legal status.
57
Tis consensus is not
newsignifcant majorities of voters have supported this type of practical reform
for years
58
but it has grown broader and more intense as the human and eco-
nomic efects of legislative failures have multiplied.
Congressional inactioncoupled with grassroots advocacy
59
has already
prompted the president to take administrative action to address the deportation
crisis: President Obama announced the Deferred Action for Childhood Arrivals, or
DACA, program in June 2012. Tis program, modeled afer the DREAM Act, grants
eligible youth a two-year reprieve from deportation and a work permit.
60
Unlike leg-
islative action, however, DACA is only temporary, can be revoked by a future admin-
istration, and does not lead directly to any other status or ultimately citizenship.
Still, for the more than 553,000 recipients so far,
61
it provides critical protection
from removal and the opportunity to move forward with their lives and careers.
With Congress once again deadlocked on reform, advocacy groups have been
increasing their calls for President Obama to use his executive authority to afrma-
tively protect an even greater number of unauthorized immigrants.
62
Te president
has called for a thorough review of the enforcement and deportation system.
63
10 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
The legal authority for
executive action on immigration
Te president is constitutionally responsible for faithfully executing the laws that
Congress enacts.
64
However, the manner and prioritization of that enforcement
how exactly to go about enforcing the lawsis lef almost entirely to the discre-
tion of the president and the executive branch. Indeed, a presidents discretion
not to enforce the criminal laws against a private individual or entity in specifc
circumstances is absolute.
Te executive branchs basic autonomy over enforcement decisions derives from
the separation of powers that is fundamental to Americas constitutional architec-
ture. In our legal system, that autonomy is expressed under the umbrella concept
of prosecutorial discretion.
65
Tis discretion to either not seek charges against
violators of a federal law or to pardon violators of a federal law provides the presi-
dent with expansive power to protect individual liberties.
66

Te executive branchs discretion in enforcing the nations laws is exercised in
myriad ways. Every prosecutor and police ofcer in the nation makes daily deci-
sions at every stage of the law enforcement process about the best allocation of
enforcement resources. Tey make those decisions based on the changing context
and circumstances of enforcement and evolving judgments about the agencys
mission and priorities.
Although our nations immigration laws are technically civil and not criminal, the
enforcement of immigration laws is more similar to the enforcement of crimi-
nal law than that of other civil laws. Individuals who are subject to immigration
enforcement are deprived of their liberty in the same way a criminal defendant is:
Tey are arrested, charged, jailedfrequently for yearsand then banished from
the country. Te most signifcant diference is that immigrants in removal proceed-
ings do not receive the same constitutional protections that criminal defendants do.
For example, these individuals have no clear right to exclude unlawfully obtained
evidence and no right to an appointed atorney. Tose diferences strengthen the
argument that the presidents authority not to enforce immigration law against
specifc individuals is absolute in the same way that it is in the criminal context.
11 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
Even in the civil context, the Supreme Court has made clear that an agencys
decision not to prosecute or enforce, whether through civil or criminal pro-
cess, is a decision generally commited to an agencys absolute discretion.
67

Te Court has repeatedly afrmed the long-standing principle that the execu-
tive branch has virtually unfetered discretion in deciding how and whether to
enforce the law against individuals.
In the immigration realm, prosecutorial discretion is also exercised at every stage
in the enforcement process. For example, ofcials decide which tips or leads will
be investigated, which persons will be arrested or detained, which persons will be
eligible for bond, which cases will be pursued to a fnal removal order, and which
fnal removal orders will be executed. Just as local police make daily decisions to
prioritize investigating murders and other violent crimes over jaywalking, immi-
gration ofcials must make decisions on how best to use their limited resources.
One common-sense rationale behind this broad executive branch discretion is
that enforcement of the laws requires consideration of a multitude of factors that
courts are ill-suited to review. As the Heckler opinion asserted, federal agency
decisions not to enforce a law or laws are presumed immune from judicial
review because the executive branch is beter equipped to conduct the com-
plicated balancing of agency priorities and resources needed to fulfll its obliga-
tions.
68
Likewise, to the extent that Congress is unhappy with the way laws are
being enforced, it can leverage its power of the purse to shape executive branch
compliance with its views by either funding or defunding the implementation of
certain policies. Ultimately, however, the primary venue to demand a change in
an administrations enforcement priorities is at the ballot box.
Prosecutorial discretion is typically exercised on a case-by-case basis when an
individual comes into contact with the authorities. But the government can also
establish policies that allow individuals with certain characteristics that render
them low enforcement priorities to afrmatively request discretion in their
case.
69
Te federal government has provided categorical deferrals of deportation
on numerous occasions over the past several decadesmost recently with the
DACA directiveusing a variety of discretionary mechanisms.
70
Tis exercise
of discretion is not contrary to current law but simply an application of current
law against the backdrop of changing circumstances, our national values, and
articulated priorities.
The executive
branch has
virtually unfettered
discretion in
deciding how and
whether to enforce
the law against
individuals.
12 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
Tere are, however, four central limits to this discretiontwo are constitutional
and two are statutory. Te frst limit is based on the same constitutional provi-
sion that endows the executive branch with inherent discretion in the frst place:
the Take Care Clause.
71
Te president cannot pick and choose which laws to
enforce and must enforce and implement all of the laws that Congress passes. Tis
administration has achieved record levels of enforcement, and so as long as DHS
continues to actively enforce the law, there can be no claim that President Obama
has violated the Take Care Clause. Whats more, no court has ever invalidated a
discretionary enforcement policy on those grounds.
Te second constitutional limit is obvious: Te governments exercise of discre-
tion cannot be used to selectively enforce the law in a discriminatory waye.g.,
deciding only to arrest, detain, and deport people of a certain race or religion. In
other words, the administrations inherent discretion in executing the law does not
justify a violation of the Constitution.
72

Just as the exercise of discretion may not violate another constitutional provi-
sion, it likewise may not violate another duly enacted law. In the immigration
context, there are two generally applicable laws that discretionary policies must
not violate: the Impoundment Control Act
73
and the Administrative Procedure
Act.
74
Te Impoundment Control Act requires the executive branch to spend the
money appropriated by Congress toward the purpose designated by Congress.
Te president cannot, for example, simply reallocate appropriated money from
DHS to the U.S. Department of the Interior. And the administration cannot refuse
to spend the money that has been appropriated. For example, the funds appropri-
ated for immigration enforcement must be spent on immigration enforcement.
75

Te discretion relates to how and whether to conduct that enforcement against
specifc individuals.
76
Even if the president decides, as a mater of discretion, not to enforce the immi-
gration laws against millions of additional low-priority undocumented immi-
grants, that would still leave millions of immigrants against whom the law can be
enforced. And, as in any law enforcement context, some immigration enforcement
activities are far more costly than others. Investigating and arresting a sophis-
ticated human smuggler, for example, would obviously require more time and
resources than questioning and detaining a nanny at the park. In other words, the
president can still deploy all of the resources Congress has appropriated but focus
them on higher-priority individuals who may require more resources to identify,
detain, and remove.
13 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
Te fnal limitation is procedural and relates to the Administrative Procedure
Acts, or APAs, bar on the executive branch creating substantive rules without
abiding by the acts rulemaking requirementsproviding public notice and
soliciting comments. However, as long as an administration directive is a general
statement of policy that leaves immigration ofcials with discretion to consider
individual facts and does not establish a binding norm, it is not subject to the
APAs procedural requirements. So as long as there is no binding rule and each
request for relief is adjudicated on a case-by-case basisas with the DACA direc-
tivethere is no violation of the APA.
Te fact remains that whatever directive the president might make to temporarily
protect low-priority immigrants from removal would naturally leave other immi-
grants unprotected. As such, although executive action in this context can help
jumpstart the reform process, it is not a substitute for legislation. Only Congress
can provide a complete and lasting solution that reforms the legal immigration
system while dealing realistically, responsibly, and humanely with the individuals
living here without status.
But if congressional paralysis persists, the president unquestionably has ample
authority to move the process forward by exercising his broad discretion in a man-
ner that furthers the national interest in safe and stable communities. Authorizing
millions of low-priority, unauthorized individuals to register and request a tempo-
rary reprieve from removal would bring them of the economic sidelines, ensure
they and their employers are paying the full complement of taxes, and thereby
enhance the nations economic productivity.
77

14 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
The exercise of prosecutorial discretion is not unique to immigration
enforcement. Every law enforcement agency develops context-spe-
cic discretionary policies depending on the population served, the
problems presented, and the underlying laws. Ultimately, enforce-
ment agencies pursue these policies to maximize the eciency and
eectiveness of furthering their priorities.
For example, say the mayor of a large city faces a serious problem of
drunk drivers running over pedestrians. The mayor might decide that
to most eectively address the problem, the city police should adopt
a policy that prioritizes investigating and arresting drunk drivers and
decline to arrest people for jaywalking and expired vehicle registra-
tions. If the mayor did not issue this policy, some police ocers would
spend time arresting people for jaywalking, while other ocers
would make some drunk driving arrests, and still other police ocers
would train their enforcement focus on entirely dierent lawsnoise
ordinances, for example. This lack of prioritization may result in a
wide range and high number of arrests and convictions, but it would
not aggressively focus the agencys resources on the citys most seri-
ous issue: drunk driving.
This concept of prioritization and prosecutorial discretion is also uti-
lized by federal agencies beyond DHS. The Environmental Protection
Agency, or EPA, for example, uses discretion when determining what
types of environmental violations to prioritize and which violators
to pursue.
78
The EPA determined this year that when enforcing the
Clean Water Act, enforcement ocials should target serious sources
of pollution and serious violations.
79
What does this prioritization
look like in practice? Given, for instance, a light bulb factory that is
pervasively contaminating a local waterway, and a single, temporary
construction site that contributes a small amount to urban runo, the
EPA would devote its eorts to sanctioning the factory.
Similarly, when reviewing tax returns, the Internal Revenue Service,
or IRS, focuses on specic groups of people and businesses. The audit
rate for individuals whose adjusted gross income, or AGI, is greater
than $10 million is 26 percent whereas the audit rate for individuals
whose AGI is between $50,000 and $70,000 is a mere 0.62 percent.
The IRS does not enforce our laws evenly across the income distri-
bution but instead targets specic groupssuch as high-income
earnersthat will yield the highest return on their investment of in-
vestigative resources. Ultimately, prosecutorial discretion and policies
such as those pursued by the EPA and IRS allow agencies to maximize
the eectiveness of their enforcement eorts.
80

Prosecutorial discretion in non-immigration contexts
15 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
Exercising discretion in
the context of immigration
Executive action aimed at altering immigration enforcement practices can be
accomplished through two types of discretionary policies. Tough the two cat-
egories are related, for the sake of clarity they can be distinguished by the terms
enforcement reforms and afrmative relief.
Enforcement reforms involve establishing and adhering to policies regarding the
treatment of low-priority immigrants who come into contact with immigration
enforcement ofcials. Tese types of policies refne the enforcement process by,
for example, declining to put noncriminals or people with extensive community
ties into removal proceedings. Tey represent smart law enforcement prioritiza-
tion and refect a set of values that result in balanced and humane enforcement
practices. Tese types of policies should be adopted irrespective of whether
Congress acts on legislative reform.
Afrmative relief, on the other hand, involves identifying low-priority individu-
alsagain, such as noncriminals or people with extensive community tiesand
creating a procedure for them to come forward and afrmatively seek temporary
protection from deportation. One example of such a policy is the aforemen-
tioned DACA program, which allows eligible young unauthorized immigrants
to apply for a two-year reprieve from deportation.
81
Expanding this type of
discretionary policy would enhance the quality of DHS enforcement practices
by narrowing the target enforcement population to higher priorities. Tis type
of afrmative relief program only becomes imperative, however, if the legislative
process remains gridlocked.
Enforcement reforms
Tis report focuses primarily on afrmative relief and ways that the president
could expand temporary protection from deportation to a greater number of peo-
ple if Congress refuses to act. But it is worth emphasizing that the administration
can and should also take a number of steps to ensure that low-priority individuals
16 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
do not end up in immigration detention and subject to removal proceedings in the
frst place. Unlike afrmative relief, which is only necessary if legislation remains
stalled, the administration should implement these enforcement reforms regard-
less of congressional action.
Te Obama administration, like its predecessors,
82
has issued a series of policy
memos articulating its priorities for immigration enforcement. In March 2011, for
example, Immigration and Customs Enforcement, or ICE, Director John Morton
laid out ICEs civil enforcement priorities, including Aliens who pose a danger
to national security or a risk to public safety, called Priority 1; Recent illegal
entrants, known as Priority 2; and Aliens who are fugitives or otherwise obstruct
immigration controls, or Priority 3.
83
In a June 2011 follow-up memo, Director
Morton announced a policy of prosecutorial discretion in which the department
would focus its resources on those three priority categories, rather than low-prior-
ity individuals, such as non-criminals or people with extensive community ties.
84
But as the Immigration Policy Center and the Migration Policy Institute point out,
DHS continues to deport people who have only commited minor violations and
people with no criminal record at all.
85
And more than half of all federal convic-
tions so far in fscal year 2014 were for immigration violations.
86
Tis has created a
vicious cycle in which immigration violations are criminalized and those with the
resulting criminal convictions become immigration enforcement priorities.
Te administration can and should do more to further refneand more efec-
tively adhere toits existing priorities. For example, it should ensure that
individuals are only considered Priority 1 if they have been convicted of a felony
not related to their immigration status and for which they served a year or more in
prison. Te administration should also defne recent illegal entrant in Priority 2
to mean individuals without established ties to the United States who are appre-
hended within 30 days and within 25 miles of the border. And it should eliminate
Priority 3 altogether.
87

Te administration must also take action on a host of other enforcement reforms.
Such actions includebut are in no way limited to:

Reforming the federal detainer process to establish a uniform policy ensuring
that detainer requests are only issued to state and local police when someone in
their custody has been convicted of a serious felony
88
17 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act

Ensuring that immigrants facing removal have a chance to go before an immigra-
tion judge, abandoning the dramatic trend toward summary removals through the
expanded use procedures such as expedited removal and reinstatement of removal

Expanding the use of alternatives to detention, implementing court decisions
fnding that any immigrant detained for a prolonged period is entitled to a bond
hearing,
89
dramatically scaling back the overbroad use of detention, and ensur-
ing that those who are detained are not detained indefnitely
Tese are just a handful of examples of highly efective and critical reforms that
comport with the administrations articulated priorities that could and should
be made as soon as possible. Tere are scores of additional recommendations
authored by numerous stakeholders that have broad support, have been presented
to DHS, and should also be adopted.
90
Affirmative relief
Te president has an array of afrmative relief mechanisms he could deploy
to address the deportation crisis. If Congress fails to advance legislation, these
mechanisms could at least start us on the path to immigration reform.
91
Tey
involve identifying low-priority individuals with some shared equitysuch as
family ties or length of time in the countryand creating a procedure for them to
come forward and afrmatively seek temporary protection from deportation.
Te existence of such a variety of mechanisms is a byproduct of the fact that,
over many decades, an array of crises relating to foreign nationals living in the
United States have required presidents to address hardship and inequities using
their executive discretion. As the Congressional Research Service has illustrated,
categorical grants of afrmative relief to non-citizens have been made 21 times
by six presidents protecting millions of immigrants just since 1976. Whats more,
in many instances, Congress was actively considering legislation that would have
provided relief to the groups of people protected by the executive action.
92

Tat, of course, is precisely the case today. Although House Republicans have for
the moment put the brakes on immigration reform legislation, their rationale for
delay has been one of political timing rather than substantive opposition. To the
contrary, there is a broad consensus in the House, including among Republicans,
that immigration reform is necessary and that it must enable undocumented
immigrants who have commited no serious crimes to pursue legal status. And
Categorical grants
of afrmative relief
to non-citizens
have been made
21 times by six
presidents.
18 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
the inverse is true as well: Only a small minority of House members believe that
the nations current de facto deportation-only policy is a viable approach to fxing
the system.
93
Tis broad consensus is likewise refected in the atitudes of the
American public: In a recent Global Strategy Group/Basswood Research poll, for
example, 79 percent of Americans were in favor of immigration reform, and nearly
three out of four said they would be disappointed if Congress fails to act this year.
Close to three-quarters of all Latino voters say it is very or extremely important
for Congress to pass reform before the midterm elections.
94

Against this backdrop, if legislation continues to stall, the time will be ripe for the
president to jumpstart the process and extend afrmative protection against removal
to low-priority individuals who in all likelihood will eventually be eligible for legisla-
tive relief. In choosing among the afrmative relief mechanisms available to him and
how to deploy them, President Obama should focus on two central factors:
1. Most importantly, given the scope of the deportation crisis and the socially,
fscally, and economically counterproductive efects of our current enforcement
eforts, he should consider which strategies would have the greatest impact:
Where is the crisis most acute? And which mechanisms and what articulation
of priorities would provide the most relief to the families, businesses, and com-
munities that have sufered under the weight of our failed laws?
2. He should put a premium on workability and efciency: Which administrative
mechanisms are fexible enough to be deployed on a large scale in as stream-
lined and transparent a fashion as possible? And which would help lay the
foundation for success in implementing future legislative reforms?
In short, President Obama should look at high-impact measures that would be
easy to implement and help smooth the ultimate transition to legalization under
legislative reform. Of the numerous discretionary mechanisms that exist, three
have been used in recent years and discussed as possible solutions to the current
crisis: deferred action, parole in place, and deferred enforced departure. Tis
report concludes that deferred action provides the fexibility needed to protect the
largest number of individuals with the fewest restrictions.
19 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
Deferred action
Te Immigration and Naturalization Service, or INS, formally recognized deferred
action as a form of prosecutorial discretion in 1975. Te INS Operating Instructions
indicated that deferred action was warranted when adverse action would be uncon-
scionable because of the existence of appealing humanitarian factors.
95

Tis form of discretionary relief became well known when the Obama administra-
tion decided in June 2012 to grant deferred action to undocumented individuals
brought here before the age of 16, the so-called DREAMers.
96
In announcing the
DACA policy, the administration set forth certain criteria for who could afrma-
tively apply for relief. Te eligibility criteria include those who:
97


Were under age 16 at time of original entry

Maintained continuous presence in the United States for at least fve years pre-
ceding the date of the memorandum

Are in school, graduated from high school or obtained a GED, or were honor-
ably discharged from the military

Have not been convicted of a felony, a signifcant misdemeanor, or multiple
misdemeanors and are not a threat to public safety

Are age 30 or younger
Tese criteria loosely track the requirements that undocumented youth would
have to meet to be eligible for permanent residence and eventual citizenship in
the various iterations of the DREAM Act.
98
It is estimated that 950,000 undocu-
mented individuals presently meet these criteria and are eligible for DACA.
99

And more than 553,000 individuals had been granted deferred action under this
program as of March 2014 out of the approximately 643,000 who have applied.
100

Tis program, by all measures, has been a resounding success.
101
From a law
enforcement perspective, it made absolutely no sense to expend resources enforc-
ing the law against these low-priority individuals. Te public overwhelmingly sup-
ports legalizing these individuals,
102
and a bipartisan supermajority of the Senate
voted to do just that as part of the immigration reform bill that passed in June
2013.
103
And by removing them from the enforcement grid, it has allowed DHS to
focus its resources on other priorities.
20 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
Moreover, it has enabled hardworking, motivated individuals who grew up in this
country and have lived here for years to move forward with their lives. CAP has
previously estimated that bringing these individuals of the economic sidelines and
onto the playing feld through passage of the DREAM Act would increase the U.S.
GDP by $329 billion and create 1.4 million jobs over the course of two decades.
104

And while deferred action is not a substitute for the DREAM Act, it has allowed
these DREAMers to secure work authorization and, in most states, to obtain drivers
licenses, thereby expanding their employment prospects.
105
It has also enabled them
to travel out of the country to visit family they had been walled of from for years
and, most importantly, to live and function without the constant fear of deportation.
Although the creation of DACA was a dramatic development for many people in
various ways, it is still very much a stopgap measure. A grant of deferred action
under DACA is only valid for a two-year periodafer which time it must be
renewedand could be rescinded at any time. Te memorandum establishing
the programs parameters highlights the truly tenuous nature of this and any other
grant of administrative relief. According to the U.S. Citizenship and Immigration
Services, or USCIS, deferred action confers no substantive right, immigration
status, or pathway to citizenship. Only Congress, acting through its legislative
authority, can confer these rights.
106

A DACA-like program could be extended to other individuals with strong equi-
tiesundocumented parents, for example. Tis program already meets the basic
criteria highlighted above: It could extend temporary protection to potentially
millions of additional low-priority individualsdemonstrating high impactand
it would be fairly straightforward to implement given that it has already had a suc-
cessful trial run with DACA. And rather than create a new program, it makes sense
from an operational efciency standpoint to build on the successes and learn from
the shortcomings of DACAs implementation.
107
Moreover, by requiring extensive
background checks and the submission of other biographic and circumstantial
data, it would smooth the process of legislative legalization in the future.
Parole in place
Another afrmative discretionary mechanism is an immigration concept known as
parole. Parole has some advantages but, as described below, is also saddled with
some limitations that make it a less atractive option for use on a broad scale than
deferred action.
Requiring extensive
background checks
would smooth the
process of legislative
legalization in the
future.
21 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
Parole is a discretionary authority recognized by statute that empowers DHS to
permit individuals to enter the country on a case-by-case basis who are otherwise
ineligible for admission because of urgent humanitarian reasons or signifcant
public beneft.
108
While historically this authority has been used to enable DHS
to authorize the entry of people from outside the country, it has been expanded
in recent decades to cover people who are already physically present in the United
States without authorization. Tis has come to be known as parole in place, or PIP.
An early application of PIP came during the so-called Mariel boatlif in the early
1980s. Some 125,000 Cubans were paroled into the United States afer having
already arrived on U.S. shores.
109
More recently, DHS established a policy autho-
rizing undocumented family members of individuals serving in the U.S. military
to be paroled in place.
110

An advantage of this tool is that it would enable certain family memberspeople
already entitled to legal status based on their familial relationshipswho entered
the country without inspection to adjust their status in the United States. Without
parole, they would be required to leave the country and endure a potentially
lengthy separation from their family members while applying for permanent resi-
dence. Programs such as PIP for military family members help ease that burden in
addition to providing interim protection.
111

Similar to deferred action, a PIP program for individuals with certain equities
has the fexibility to be constructed in a variety of ways. For example, there are
no specifc limits on the time period for which parole may be granted. Much like
deferred action, numerous administrations have relied on it as a tool to help deal
with the efects of an unexpected crisis.
112
And as with deferred action, individuals
receiving PIP are also eligible for employment authorization.
113

Unlike deferred action, however, parole currently contains an important limita-
tion: It is not presently used for people who overstayed their visas, which includes
an estimated 40 percent of the current undocumented population.
114
Visa over-
stayers were formally admited to the United States before they violated their
status, whereas parole has historically been used to authorize entry of those who
were inadmissible at the outset or crossed the border without inspection. In other
words, unless parole was reinterpreted, its use on a broad scale would implicitly
preference individuals who crossed the border without authorization over those
who overstayed their visas.
115

22 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
Relatedly, there is also some uncertainty as to whether PIP is only available to
people who would otherwise be eligible to become permanent residents. Whether
it is only available to individuals who already have a qualifying relationship, such
as marriage to a legal permanent resident, is another interpretive hurdle that
would need to be overcome.
116

Given these potential limitations to a broad application of PIP, deferred action
appears to be the more fexible and clear-cut mechanism to anchor an expansive
afrmative relief policy. Parole in place, however, could be used as a complement
or alternative to deferred action in cases where an individual would otherwise be
eligible to adjust their status to permanent residence.
Deferred enforced departure
A third administrative mechanism for providing afrmative relief is known as
deferred enforced departure, or DED. DED is a presidential designation that pro-
tects nationals of a specifc country from removal. Similar to PIP, DED contains
important limitations that make it less useful than deferred action for expanding
administrative relief.
Te executive branchs inherent authority to exercise discretion in faithfully exe-
cuting the laws derives from many sources. In the immigration context, it relates in
part to the presidents authority to conduct foreign relations.
117
Tis is especially
relevant to DED, which carries obvious foreign relations implications.
118

Since 1960, presidents have extended DEDor its former iteration, extended vol-
untary departure, or EVDto foreign nationals of more than a dozen countries.
119

Currently, foreign nationals from Liberia
120
are protected by DED, following decades
of civil war in their home country. Other recent designations include Haitians in
1997,
121
Salvadorans in 1992,
122
and certain Chinese nationals in 1990.
123
DED des-
ignations are typically issued via executive orders or presidential memoranda.
DED contains a great deal of fexibility in why and under what conditions it
can be deployed. Te principal limitation of DED, however, is that to date it has
only been used for nationals of specifc countries.
124
Given that the current U.S.
undocumented population is composed of nationals from scores of diferent
countries,
125
any decision on which nationals should receive DED would necessar-
ily leave out others. Tis inevitable exclusion of certain individuals from protec-
tion is, of course, a function of the limitations inherent in executive action and
another example of why legislative action is ultimately the only solution.
23 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
Even though DED could provide major relief if applied to a country such as
Mexico, whose nationals make up 52 percent of the undocumented population,
126

selecting one nationality for protection seems arbitrary and disconnected from the
nature of the deportation crisis and the rationale for enforcement prioritization.
127

Te harm experienced by individuals in communities across the country is based
on familial and other connections here in the United States, not on their country
of origin. And the judgment about how to prioritize resources should be carefully
considered and values-based rather than an arbitrary designation.
In short, because of its country-specifc limitation, DED appears to be a less fex-
ible mechanism for providing afrmative relief than deferred action based on an
articulation of equities and priorities.
24 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
The equities: Who should be
covered by deferred action?
Tis section outlines some of the equities, or factors, that should be considered in
the process of prioritizing enforcement eforts. In seting enforcement priorities
about the undocumented population and deciding who might be designated for
afrmative relief, it is critical to consider how deeply rooted most of these individu-
als are in our communities. Tere are countless equities that could be considered
and what follows should neither be construed as an exhaustive list, nor an assess-
ment that one group is more deserving of protection than another. Tis is merely an
atempt to highlight individuals who share an important characteristic or equity that
could lead them to be presumptively treated as low priority and eligible for relief.
It is important to acknowledge that while the president indisputably has broad
discretion to provide afrmative relief, what is contemplated here is a signifcant
expansion in the scope of such relief. But it is equally important to acknowledge
why that is: We are facing an immigration enforcement landscape that is unprec-
edented in our history and will require a uniquely bold response if legislation
remains stalled. We have a massive population of undocumented residents who
are more deeply integrated and more geographically dispersed throughout the
country than ever.
128
And we are spending close to $18 billion each year atempt-
ing to drive them out of the country rather than fnding a way for them to realize
their social and economic potential here.
129

Te crisis that has grown out of these conficting realities has reached a break-
ing point and something has to give. Continuing to try to enforce our way to a
solution given the size and integrated nature of this population would be, in the
words of the Deferred Action Operating Instructions, unconscionable.
130
Smart
prioritization that begins to fx the broken system is the only sensible response to
the political paralysis currently preventing legislative reform.
25 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
Likelihood of legislative protection
Te frst category of individuals to consider is also potentially the broadest: indi-
viduals who would be eligible for legalization under S. 744. Tese are individuals
who a bipartisan supermajority of senators voted to protect, who the president has
repeatedly supported protecting, and who the American public strongly supports
being protected.
131
In other words, the vast majority of Americans and lawmak-
ers believe these individuals should be eligible to remain in the United States and
earn the privilege of permanent residence. Deporting these individuals while the
House dithers creates policy dissonance and moral incoherence.
Te basic eligibility criteria to apply for provisional legal status under S. 744 include:

Physical presence in the United States before January 1, 2012

No conviction for a felony or three misdemeanors occurring on diferent dates

Not inadmissible based on security, criminal, or other safety grounds
Tere is considerable precedent for granting temporary immigration relief to the
potential benefciaries of pending legislation. Examples include:

DACA recipients in 2012 with the DREAM Act pending

DED to Haitians in 1997 before the Haitian Refugee Immigration Fairness Act
passed in 1998, allowing Haitian refugees in the country since before 1995 to
apply for a green card
132

Deferred deportation of unauthorized spouses and children of individuals legal-
ized under Immigration Reform and Control Act, or IRCA, in 1987, and then
expanded in 1990before the Legal Immigration Family Equity, or LIFE, Act,
which allowed certain people without status to adjust to permanent residence,
passed later in 2000
133

Nicaraguans in 1987 when legislation was pending10 years before the
Nicaraguan Adjustment and Central American Relief Act, which allowed certain
people from Guatemala, El Salvador, and other countries to apply for permanent
residence, passed in 1997
134

Tis category of individuals is admitedly broad. CBO has estimated that the
number of individuals who would meet these criteria and initially register under
the Senate bill is 8.3 million.
135
Some will argue that granting deferred action
to these individuals would carve out such a large part of the immigrant popula-
tion that Congress has declared removable that DHS will not be able to fulfll its
26 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
mandate to faithfully execute the laws. In other words, they will argue that pro-
tecting such a large class of people makes it impossible for the agency to deploy
the resources Congress has appropriated to enforce the law in violation of the
Impoundment Control Act.
Tat legal conclusion, however, can only be drawn by answering a question of
fact: Is the agency currently able to focus all of its appropriated resources on
immigrants who have commited crimes or represent a danger to society or who
have arrived here without authorization afer January 2012? Tis report does
not atempt to answer that question conclusively, since the necessary data about
operational costs required to make a fair assessment are not available. At a mini-
mum, however, it seems plausible that priorities could be reshaped and resources
redirected in a way that makes such a policy viable.
Even if the administration answers that question in the negative, it still makes
sense to utilize the Senate-protected population as the starting point for consid-
ering which equities should be prioritized. Tis population represents a clear artic-
ulation of whom we, as a nation, believe should be eligible to earn the privilege
of citizenship over time. It also refects whom we believe should not be removed
from this country.
Family ties
One of the central crises created by our supercharged deportation system is the
separation of families. Family unity has long been a hallmark value informing our
nations immigration laws and policies,
136
but the forced estrangement of millions
of family members has recently become one of the systems ugliest byproducts. As
such, protecting the family unit through an expansion of deferred action should be
another way of thinking about reseting the agencys enforcement priorities.
Tis protection could be done in a number of ways. Society obviously has a
deep interest in maintaining the core family unit of parents and children. When
children lose parents or fear losing their parents to deportation, it has severe
emotional, social, and economic efects.
137
Protecting against those separations by
deprioritizing undocumented parents would be a rational, humane, and defensible
policy approach.
The forced
estrangement of
millions of family
members has
recently become
one of the systems
ugliest byproducts.
27 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
But other family relationships beyond parents and children are
critically important as well. Another way to give weight to family-
based equities would be to deprioritize individuals who have
a familial relationship that would qualify them for permanent
residence. Hundreds of thousands of undocumented immigrants
have been sponsored foror could be sponsored fora green
card by a qualifying relative, but they cannot adjust their status
because they are presently undocumented. Tese include, for
example, the spouses of legal permanent residents, the adult
children of U.S. citizens or legal permanent residents, and the
siblings of U.S. citizens. Given their threshold eligibility for
permanent residence and the value that we place on strong fam-
ily structures, treating them as low priorities who are eligible for
relief makes good sense from a law enforcement perspective.
Employment background
Another approach to considering equities and prioritizing enforcement is to look
at the role that undocumented individuals play in the nations workforce. An esti-
mated 8 million workers are undocumentedmore than 5 percent of the nations
total workforcebut they are not evenly distributed across industries. In some
industries, they are signifcantly overrepresented in the workforce. For example,
an estimated 50 percent of agricultural crop workers are undocumented. In total,
there are 1 million undocumented workers in the agricultural sector at large.
142
*
One way to consider prioritization eforts would be to protect workers in indus-
tries that are highly dependent on undocumented workers. Undocumented farm
workers are clearly critical to the agricultural industry and, in turn, are the back-
bone of Americas food supply. Tese workers are among the most vulnerable in
America because of the difculty of the work, the remoteness of their worksites,
and the fact that they are not protected by wage and hour rules.
Legislation that would create a path to earned legalization for these workers
known as Ag JOBShas been introduced almost every year since 1998.
143
It
represents an agreement between growers and farmworkers to fx the problems
facing an undocumented workforce now and going forward. It has historically had
bipartisan support and has been the model for broader comprehensive reform

The number of unauthorized immigrants with
relatives in the United States, by group:

4.7 million unauthorized immigrants have at
least one minor child in the United States
138

3.8 million of these are parents of U.S. citizen
children
139

1.7 million unauthorized immigrants have a
spouse who is a U.S. citizen or legal permanent
resident
140

400,000 unauthorized immigrants have at least
one U.S. citizen sibling
141
What do family ties look like?
28 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
legislation. But, as with the broader legislation, political paralysis has prevented
it from becoming law.
144
And instead of being protected, this population remains
isolated, subject to exploitation by unscrupulous employers,
145
and lives under the
threat of immigration enforcement.
Given the importance of this workforce, its vulnerability, and the consensus
that agricultural workers deserve relief, the argument in favor of an afrmative
grant of protection to this group makes eminent sense. Tere are other discrete
workforces, however, that have similar equities but a less visible role in the public
debates. Tey too could be candidates for a grant of afrmative relief.
Duration of residence
One clear and obvious equity that should be considered relates to the rootedness
of immigrants and their connections to the community. Given the protracted
failure of Congress to produce a legislative solution, the undocumented popula-
tion has become increasingly well setled in communities around the country. One
easy proxy for assessing rootedness is the length of time an individual has lived in
the country. Nearly two-thirds of the population had lived in the United States for
more than 10 years as of 2011.
146
Te more rooted individuals are, the more harm and dislocation that occurs in
tearing them from their family and community. Removing them from the United
States does not only leave families struggling with loss, but it also creates holes
in businesses, churches, sports leagues, and school commitees. It means that a
family might not be able to continue paying the mortgage, rent, or car payments. It
means that a whole web of social and economic relationships will be destroyed. In
other words, their removal takes a signifcant toll on all of us.
Te criteria for DACA contemplated length of residence as one of several equities.
Recipients had to have been both brought to the country before the age of 16 and
lived in the country for fve years. Tis tracked the DREAM Acts requirements,
but it also refected a value that individuals who have been living here for an
extended period of time and are more deeply ensconced in American schools and
communities should be very low priorities for removal.
29 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
Tere are obviously diferent ways to assess rootedness, and duration of residence
is only one. In constructing a program for protecting individuals who are deeply
setled, a combination of equities could be considered.
Likelihood of legislative protection, familial connections, employment back-
ground, and rootedness are some of the principal equities that could inform an
afrmative relief policy. But choosing one characteristic or a combination of char-
acteristics meriting afrmative discretionary relief will likely leave other deserv-
ing individuals out. And either way, afrmative relief cannot provide the type of
permanent solution that legislation would ofer.
30 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
Conclusion
Te deportation crisis has taken an incalculable human toll on millions of U.S.
citizens and immigrants who have lost their family members, their livelihoods,
and their faith in the American Dream. It has strained our economy, divided our
communities, and stained our national identity. Te deportation crisis must be
resolved, and the only way to do so in a complete and lasting fashion is through
congressional enactment of comprehensive immigration reform.
But if House Republicans continue to block a long-term immigration solution,
President Obama will be lef with no choice but to begin the process of fxing
the system by utilizing the full breadth of his extensive discretionary authority to
address the situation.
By expanding the use of deferred action beyond DACA to other individuals with
compelling equities, the president can help stabilize families, communities, and
local economies across the country. Such action would, by defnition, be incom-
plete and the need for meaningful legislative reforms would remain. But it is the
lawful, just, and necessary response to a crisis.
*Correction, July 7, 2014: This report incorrectly stated diferent fgures for the number of
undocumented workers in the agricultural sector. The correct number is 1 million.
31 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
About the author
Marshall Fitz is the Director of Immigration Policy at the Center for American
Progress, where he directs the organizations research and analysis of the economic,
political, legal, and social impacts of immigration policy in America and develops
policy recommendations designed to further Americas economic and security
interests. Fitz has been one of the key legislative strategists in support of comprehen-
sive immigration reform and has served as a media spokesperson on a broad array of
immigration policy and legislative issues. He has also been a leader in national coali-
tions that advance progressive immigration policies. He regularly advises members
of Congress on immigration policy, politics, and strategy and has helped draf major
legislation. Fitz is a graduate of the University of Virginia School of Law.
Acknowledgements
Te author would like to thank Angela Maria Kelley, Philip E. Wolgin, Crystal
Paterson, Ann Garcia, Patrick Oakford, Micah Jones, and Evelyn Galvan for their
assistance in preparing this report.
32 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
Endnotes
1 Michael D. Shear, Obama, Citing a Concern for Families,
Orders a Review of Deportation, The New York Times,
March 13, 2014, available at http://www.nytimes.
com/2014/03/14/us/obama-orders-review-of-deporta-
tions.html.
2 Michael D. Shear, Obama Asks Homeland Security
Secretary to Delay Deportation Review, The New York
Times, May 27, 2014, available at http://www.nytimes.
com/2014/05/28/us/obama-asks-homeland-security-
secretary-to-delay-deportation-review.html.
3 Border Security, Economic Opportunity, and Immigration
Modernization Act of 2013, S. 744, 113th Cong., 1 sess.
(Government Printing Ofce, 2013), available at https://
www.govtrack.us/congress/bills/113/s744/text.
4 The CAP Immigration Team, Infographic: Who Does
the House GOP Stand With?, Center for American
Progress, November 14, 2013, available at http://
www.americanprogress.org/issues/immigration/
news/2013/11/14/79453/infographic-who-does-the-
house-gop-stand-with/; Philip E. Wolgin and Evelyn
Galvan, Immigration Polling Roundup: Americans of
All Political Stripes Want Congress to Pass Immigration
Reform,Center for American Progress, March 4, 2014,
available at http://www.americanprogress.org/issues/
immigration/news/2014/03/04/85102/immigration-
polling-roundup-americans-of-all-political-stripes-want-
congress-to-pass-immigration-reform/; Latino Decisions,
Center for American Progress Action Fund / Latino Deci-
sions Immigration Poll / June 2014(2014), available at
http://www.latinodecisions.com/fles/1214/0165/7185/
CAP_Poll_Results_-_Legislative_Results.pdf.
5 The New York Times, Text of Republicans Principles
on Immigration, January 30, 2014, available at http://
www.nytimes.com/2014/01/31/us/politics/text-of-
republicans-principles-on-immigration.html.
6 Jonathan Weisman, Boehner Doubts Immigration Bill
Will Pass in 2014, The New York Times, February 6, 2014,
available at http://www.nytimes.com/2014/02/07/us/
politics/boehner-doubts-immigration-overhaul-will-
pass-this-year.html.
7 Paul Taylor and others, Unauthorized Immigrants:
Length of Residency, Patterns of Parenthood (Wash-
ington: Pew Hispanic Center, 2011), available at http://
www.pewhispanic.org/2011/12/01/unauthorized-im-
migrants-length-of-residency-patterns-of-parenthood/.
8 The Obama administration points out that many
more removals are now taking place at the border
rather than from the interior. The intimation is that
these are individuals apprehended while entering the
country unlawfully and therefore lack the connec-
tions and equities of immigrants living in the interior.
This suggestion is problematic for two reasons. First,
DHS own data cannot tell us how many deportations
from apprehensions along the border were of people
actually apprehended while in the process of entering.
Along the border is defned as 100 miles within the
border and therefore includes a 100-mile perimeter
around the entire country. And the defnition of recent
entrants includes people who arrived within the previ-
ous three years. In other words, of the about 235,000
removals that occurred at the border, we have no idea
how many were actually apprehended while entering.
Second, even assuming a signifcant proportion of the
removals were of individuals actually apprehended
while attempting to enter the country, we have zero
information on how many had strong equities in the
United States because they had lived here for 5, 10, or
20 years before leaving and attempting to re-enter. We
have zero data on how many had U.S. citizen families
living here. In other words, even if they were appre-
hended while enteringand certainly if they were just
apprehended in a border regionwe cannot draw a
conclusion that they had fewer equities than individu-
als living in the interior.
9 U.S. Department of Homeland Security, Yearbook of
Immigration Statistics: 2012, Table 39, Aliens Removed or
Returned: Fiscal Years 1892 to 2012 (2012), available at
https://www.dhs.gov/sites/default/fles/publications/
immigration-statistics/yearbook/2012/ENF/table39.xls;
U.S. Immigration and Customs Enforcement, FY 2013 ICE
Immigration Removals (U.S. Department of Homeland
Security, 2013), available at http://www.ice.gov/doclib/
about/ofces/ero/pdf/2013-ice-immigration-removals.
pdf.
10 For more information on population sizes, see U.S.
Bureau of the Census, Annual Estimates of the Resident
Population for Incorporated Places Over 50,000, Ranked
by July 1, 2012 Population: April 1, 2010 to July 1, 2012,
available at http://factfnder2.census.gov/faces/table-
services/jsf/pages/productview.xhtml?src=bkmk (last
accessed June 2014).
11 Seth Freed Wessler, Primary Data: Deportations
of Parents of U.S. Citizen Kids, Color Lines, Decem-
ber 17, 2012, available at http://colorlines.com/
archives/2012/12/deportations_of_parents_of_us-
born_citizens_122012.html.
12 Seth Freed Wessler, Shattered Families: The Perilous
Intersection of Immigration Enforcement and the Child
Welfare Systems (New York: Applied Research Center,
2011), available at http://www.atlanticphilanthropies.
org/sites/default/fles/uploads/ARC_Report_Shat-
tered_Families_FULL_REPORT_Nov2011Release.pdf.
13 U.S. Department of Homeland Security, Budget-in-Brief
Fiscal Year 2015 (2013), available at http://www.dhs.
gov/publication/fy-2015-budget-brief.
14 The World Bank, GDP Ranking, available at http://data.
worldbank.org/data-catalog/GDP-ranking-table (last
accessed June 2014).
33 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
15 See, for example, Linda Feldmann, Obama tells
heckler he cant halt deportations unilaterally. Is that
true?, The Christian Science Monitor, November 25,
2013, available at http://www.csmonitor.com/USA/
DC-Decoder/2013/1125/Obama-tells-heckler-he-can-t-
halt-deportations-unilaterally.-Is-that-true-video.
16 Jefrey S. Passel, DVera Cohn, and Ana Gonzalez-Bar-
rera, Population Decline of Unauthorized Immigrants
Stalls, May Have Reversed (Washington: Pew Hispanic
Center, 2013), available at http://www.pewhispanic.
org/2013/09/23/population-decline-of-unauthorized-
immigrants-stalls-may-have-reversed/.
17 U.S. Citizenship and Immigration Services, Consider-
ation of Deferred Action for Childhood Arrivals Process,
available at http://www.uscis.gov/humanitarian/con-
sideration-deferred-action-childhood-arrivals-process
(last accessed June 2014).
18 (Legacy) Immigration and Naturalization Service,
Operations Instructions, O.I. 103.1(a) (1) (ii) (1975).
19 Deferred enforced departure, or DED, relief was
exercised by President George W. Bush in 2007, and
extended by President Obama in 2009 for certain
nationals of Liberia. For more information, see U.S. De-
partment of Homeland Security, Fact Sheet: Liberians
Provided Deferred Enforced Departure, Press release,
September 12, 2007, available at http://www.uscis.gov/
sites/default/fles/fles/pressrelease/LiberiaFS_07Sep12.
pdf. Also see U.S. Citizenship and Immigration
Services, Deferred Enforced Departure, available at
http://www.uscis.gov/portal/site/uscis/menuitem.
eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=fbf
f3e4d77d73210VgnVCM100000082ca60aRCRD&vgnext
channel=fbf3e4d77d73210VgnVCM100000082ca60aR
CRD (last accessed June 2014).
20 For a good description of the various protective mea-
sures available to the president, see National Immigra-
tion Law Center, What DHS Can Do Right Now (2013),
available at http://www.nilc.org/whatDHScando.html.
21 Border Security, Economic Opportunity, and Immigration
Modernization Act of 2013.
22 Congressional Budget Ofce, Cost Estimate of S. 744
Border Security, Economic Opportunity, and Immigra-
tion Modernization Act (2013), available at http://
www.cbo.gov/sites/default/fles/cbofles/attachments/
s744.pdf.
23 Taylor and others, Unauthorized Immigrants.
24 Randy Capps and others, A Demographic, Socio-
economic, and Health Coverage Profle of Unauthor-
ized Immigrants in the United States (Washington:
Migration Policy Center, 2013), available at http://www.
migrationpolicy.org/research/demographic-socioeco-
nomic-and-health-coverage-profle-unauthorized-
immigrants-united-states; Jefrey S. Passel and DVera
Cohn, Unauthorized Immigrant Population: National
and State Trends, 2010 (Washington: Pew Hispanic
Center, 2011), available at http://www.pewhispanic.
org/fles/reports/133.pdf. We have calculated the ag-
riculture number based on the fact that 52 percent of
the 2 million agricultural workers in the United States
are undocumented. See Philip Martin and J. Edward
Taylor, Ripe with Change: Evolving Farm Labor Markets
in the United States, Mexico, and Central American
(Washington: Migration Policy Institute, 2013), available
at http://www.migrationpolicy.org/research/ripe-
change-evolving-farm-labor-markets-united-states-
mexico-and-central-america.
25 Taylor and others, Unauthorized Immigrants.We have
arrived at this calculation using the 63 percent of un-
documented immigrants that Pew estimates have been
in the country for more than a decade, out of the 11.7
million unauthorized immigrants living in the United
States as of 2012.
26 Taylor and others, Unauthorized Immigrants.
27 Pew Hispanic Center, Modes of Entry for the Unauthor-
ized Migrant Population (2006), available at http://
pewhispanic.org/fles/factsheets/19.pdf.
28 Taylor and others, Unauthorized Immigrants.
29 Cecilia Menjvar and Leisy Abrego, Legal Violence in
the Lives of Immigrants: How Immigration Enforcement
Afects Families, Schools, and Workplaces (Washing-
ton: Center for American Progress, 2012), available at
http://www.americanprogress.org/issues/immigration/
report/2012/12/11/47533/legal-violence-in-the-lives-
of-immigrants/.
30 INA 212(a)(9)(B).
31 Immigration Policy Center, So Close and Yet So Far:
How the Three- and Ten-Year Bars Keep Families Apart
(2011), available at http://www.immigrationpolicy.org/
just-facts/so-close-and-yet-so-far-how-three-and-ten-
year-bars-keep-families-apart.
32 Immigration Reform and Control Act of 1986, Public Law
99603, 99th Cong., 2d sess. (November 6, 1986).
33 Immigration Act of 1990, Public Law 101649, 101st
Cong., 2d sess. (November 29, 1990).
34 For more information, see U.S. Visas, Visa Bulletin for
April 2014, available at http://travel.state.gov/content/
visas/english/law-and-policy/bulletin/2014/visa-bulle-
tin-for-april-2014.html (last accessed April 2014).
35 For example, in 1993, the INS initiated Operation Hold
the Line in El Paso and Operation Gatekeeper in San
Diego, which signaled a new border enforcement
strategy premised on surging resources at known entry
points. In 1996, Congress passed the Illegal Immigra-
tion Reform and Immigrant Responsibility Act and the
Antiterrorism and Efective Death Penalty Act, both of
which included harsher penalties for unlawful entries,
restricted due process protections, and created new
bars for undocumented immigrants attempting to
re-enter the United States. For more information, see
Aristide R. Zolberg, A Nation By Design: Immigration
Policy in the Fashioning of America (Cambridge: Harvard
University Press, 2006), chapter 11.
36 Robert Warren and John Robert Warren, Unauthorized
Immigration to the United States: Annual Estimates
and Components of Change, by State, 1990 to 2010,
International Migration Review 47 (2) (2013): 296329;
Passel and others, Population Decline of Unauthorized
Immigrants Stalls, May Have Reversed.
37 Marc R. Rosenblum, US Immigration Policy Since 9/11:
Understanding the Stalemate over Comprehensive
Immigration Reform (Washington: Migration Policy In-
stitute, 2011), available at http://www.migrationpolicy.
org/research/RMSG-us-immigration-policy-cir-stale-
mate.
38 U.S. Department of Homeland Security, Yearbook of
Immigration Statistics: 2012, Table 39; U.S. Immigration
and Customs Enforcement, FY 2013 ICE Immigration
Removals.
34 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
39 Doris Meissner and others, Immigration Enforcement
in the United States: The Rise of A Formidable Machin-
ery (Washington: Migration Policy Institute, 2013),
pp. 3133, available at http://carnegie.org/fleadmin/
Media/Image_Galleries/immigration_enforcement_
in__us_MPI_report.pdf.
40 Transactional Records Access Clearinghouse, Convic-
tions for 2014, available at http://trac.syr.edu/tracrep-
orts/ (last accessed June 2014).
41 Michael T. Light, Mark Hugo Lopez, and Ana Gonzalez-
Barrera, The Rise of Federal Immigration Crimes:
Unlawful Reentry Drives Growth (Washington: Pew
Research Center, 2014), available at http://www.
pewhispanic.org/fles/2014/03/2014-03-18_federal-
courts-immigration-fnal.pdf.
42 Marc R. Rosenblum and Doris Meissner, The Current
Record on Deportations: What Underlies the Eye of the
Beholder Dynamic?, Migration Policy Institute, April
2014, available at http://migrationpolicy.org/news/
current-record-deportations-what-underlies-eye-
beholder-dynamic.
43 Joanna Dreby, How Todays Immigration Enforcement
Policies Impact Children, Families, and Communi-
ties: A View from the Ground (Washington: Center
for American Progress, 2012), available at http://
www.americanprogress.org/issues/immigration/
report/2012/08/20/27082/how-todays-immigration-
enforcement-policies-impact-children-families-and-
communities/.
44 Wessler, Primary Data; Wessler, Shattered Families.
45 Meissner and others, Immigration Enforcement in the
United States.
46 U.S. Department of Homeland Security, Yearbook of
Immigration Statistics: 2012, Table 39; U.S. Immigration
and Customs Enforcement, FY 2013 ICE Immigration
Removals.
47 Ibid.
48 Ibid.
49 Wessler, Primary Data.
50 Wessler, Shattered Families.
51 Meissner and others, Immigration Enforcement in the
United States.
52 Comprehensive Immigration Reform Act of 2006, S. 2611,
109 Cong.,

2 sess. (Government Printing Ofce, 2006);
Secure Borders, Economic Opportunity and Immigration
Reform Act of 2007, S. 1348, 110 Cong., 1 sess. (Govern-
ment Printing Ofce, 2007); A bill to provide for compre-
hensive immigration reform and for other purposes, S.
1639, 110 Cong., 1 sess. (Government Printing Ofce,
2007).
53 CNN, House approves DREAM Act, but Senate approval
uncertain, December 9, 2010, available at http://
www.cnn.com/2010/POLITICS/12/08/dream.act/; Elise
Foley, DREAM Act Vote Fails in Senate, Hufngton
Post, December 18, 2010, available at http://www.
hufngtonpost.com/2010/12/18/dream-act-vote-
senate_n_798631.html.
54 Border Security, Economic Opportunity, and Immigration
Modernization Act of 2013.
55 See, for example, Igor Bobic, Boehner: We Have No
Intention of Ever Taking Up Senate Immigration Bill,
TPM, November 13, 2013, available at http://talking-
pointsmemo.com/livewire/boehner-no-conference-on-
senate-immigration-bill.
56 The New York Times, Text of Republicans Principles on
Immigration; Weisman, Boehner Doubts Immigration
Bill Will Pass in 2014.
57 Wolgin and Galvan, Immigration Polling Roundup;
Latino Decisions, Center for American Progress Action
Fund / Latino Decisions Immigration Poll / June 2014.
58 See, for example, National Immigration Forum, Change
and Continuity: Public Opinion on Immigration
Reform (2009), available at http://immigrationforum.
org/images/uploads/PollingMemo09.pdf and Ruy
Teixeira, The Public Supports Immigration Reform,
Center for American Progress, May 18, 2007, available
at http://americanprogress.org/issues/public-opinion/
news/2007/05/18/2954/the-public-supports-immigra-
tion-reform/.
59 See, for example, Walter J. Nicholls, The DREAMers: How
the Undocumented Youth Movement Transformed the Im-
migrant Rights Debate (Stanford, CA: Stanford University
Press, 2013).
60 U.S. Citizenship and Immigration Services, Consider-
ation of Deferred Action for Childhood Arrivals Process.
61 U.S. Citizenship and Immigration Services, Number of
I-821D, Consideration of Deferred Action for Childhood
Arrivals by Fiscal Year, Quarter, Intake, Biometrics and
Case Status: 2012-2014 (U.S. Department of Homeland
Security, 2014), available at http://www.uscis.gov/sites/
default/fles/USCIS/Resources/Reports%20and%20
Studies/Immigration%20Forms%20Data/All%20
Form%20Types/DACA/I821d_daca_fy2014qtr2.pdf.
62 See, for example, Christi Parsons and Kathleen Hen-
nessey, Obama orders deportation review, seeks more
humane enforcement, The Los Angeles Times, March
13, 2014, available at http://articles.latimes.com/2014/
mar/13/news/la-pn-obama-orders-deportation-
review-20140313.
63 Shear, Obama Asks Homeland Security Secretary to
Delay Deportation Review.
64 U.S. Constitution, art. II, Sec. 3.
65 U.S. Const. art. II, 1, cl. 1 (Executive Power Clause); U.S.
Const. art. II, 1, cl. 8 (Oath of Ofce Clause); U.S. Const.
art. II, 2, cl. 1 (Pardon Clause); U.S. Const. art. II, 3
(Take Care Clause); see also U.S. Const.. art. I, 9, cl. 3
(Bill of Attainder Clause).
66 In re Aiken County, No. 11-1271, slip op. at 15 (D.C. Cir.
201).
67 Heckler v. Chaney, 470 U.S. 821, 831 (1985); see also
Confscation Cases, 74 U.S. 454, 457 (1868).
68 Heckler v. Chaney.
69 Ibid., p. 13. (The President may decline to prosecute
or may pardon because of the Presidents own con-
stitutional concerns about a law or because of policy
objections to the law, among other reasons.) (emphasis
added)
70 For example: EVD for Lebanese in 1976, Ethiopians in
1977, Ugandans in 1978, Nicaraguans in 1979, Iranians
in 1979; Poles in 1984; protection for Nicaraguans in
1987; family members of those legalized under IRCA in
1990; DED for Liberians in 2007.
71 U.S. Constitution, Article II, Clause 5.
72 Kate M. Manuel and Todd Garvey, Prosecutorial Discre-
tion in Immigration Enforcement: Legal Issues(Wash-
ington: Congressional Research Service, 2013), available
35 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
at https://www.fas.org/sgp/crs/misc/R42924.pdf.
73 Congressional Budget and Impoundment Control Act of
1974, Public Law 93344, 93rd Cong., 2d sess. (July 12,
1974).
74 Administrative Procedure Act of 1946, Public Law 79404,
79thCong., 2d sess. (June 11, 1946).
75 See, for example, Memorandum from William H.
Rehnquist, Assistant Attorney General, Ofce of Legal
Counsel, to Edward L. Morgan, Deputy Counsel to the
President December 1, 1969, reprinted in Executive
Impoundment of Appropriated Funds: Hearings Before
the Subcommittee on Separation of Powers of the
Subcommittee on the Judiciary, 92d Cong. 1st sess.,
1971, 279, 282.
76 31 U.S. Code 1301, available at http://www.law.cornell.
edu/uscode/text/31/1301 (last accessed June 2014)
77 For a complete list, see Letter from Andorra Bruno and
others to multiple congressional requesters, July 13,
2012, available at http://edsource.org//wp-content/
uploads/Deferred-Action-Congressional-Research-
Service-Report.pdf.
78 Charles J. Babbitt, Dennis C. Cory, and Beth L. Krucheck,
Discretion and the Criminalization of Environmental
Law, Duke Environmental Law and Policy Forum 15 (1)
(2004): 164.
79 U.S. Environmental Protection Agency, National
Program Manager Guidance (2013).
80 Another example, from the Department of Justice,
is the Department of Justices Antitrust Divisions
Leniency program, which allows people who have
participated in an anti-trust violation to avoid criminal
conviction and penalties if they are the frst to come
forward, confess, and fully cooperate with the Depart-
ment of Justice. See Scott D. Hammond and Belinda A.
Barnett, Frequently Asked Questions Regarding the
Antitrust Divisions Leniency Program and Model Leni-
ency Letters (Washington: U.S. Department of Justice,
2008), available at http://www.justice.gov/atr/public/
criminal/239583.htm#N_6_
81 U.S. Citizenship and Immigration Services, Consider-
ation of Deferred Action for Childhood Arrivals Process.
82 See the list of memos referenced in Letter from John
Morton to all feld ofce directors, all special agents in
charge, and all chief counsel, June 17, 2011, available at
http://www.ice.gov/doclib/secure-communities/pdf/
prosecutorial-discretion-memo.pdf.
83 Letter from John Morton to all ICE employees, March 2,
2011, available at http://www.ice.gov/doclib/news/rele
ases/2011/110302washingtondc.pdf.
84 Letter from John Morton to all feld ofce directors, all
special agents in charge, and all chief counsel.
85 Immigration Policy Center, Misplaced Priorities: Most
Immigrants Deported by ICE in 2013 Were a Threat to
No One (2014), available at http://immigrationpolicy.
org/sites/default/fles/docs/misplaced_priorities_
march_2014.pdf; Marc R. Rosenblum and Doris Meiss-
ner, The Deportation Dilemma: Reconciling Tough and
Humane Enforcement (Washington: Migration Policy
Institute, 2014), available at http://migrationpolicy.
org/research/deportation-dilemma-reconciling-tough-
humane-enforcement.
86 Transactional Records Access Clearinghouse, Convic-
tions for 2014.
87 American Civil Liberties Union, Recommendations
to DHS to Address Record-Level Deportations (2014),
available at https://www.aclu.org/sites/default/fles/as-
sets/14_1_22_aclu_recommendations_to_dhs_to_ad-
dress_record-level_deportations_fnal2.pdf.
88 States from Connecticut to California have already
enacted legislation barring police from honoring these
detainer requests except in the case of serious crimes,
and other states, such as Maryland, are consider-
ing similar policies. DHS should eliminate the need
for these state-by-state initiatives by establishing a
uniform policy that precludes the issuance of such re-
quests except when the underlying crime indicates the
person is a threat to public safety. For more informa-
tion, see Elise Foley and Roque Planas, Trust Act signed
in California to Limit Deportation Program, Hufngton
Post, October 5, 2013, available at http://www.hufng-
tonpost.com/2013/10/05/trust-act-signed_n_4050168.
html and Jesse Jaeger, Connecticut is frst state to limit
participation in Secure Communities program, UUMass
Action, June 3, 2013, available at http://www.uumas-
saction.org/uuma/connecticut-unanimously-passes-
trust-act-to-limit-deportations/.
89 Rodriguez v. Robbins, No. 12-56732 (9th Cir. 2013)
90 See, for example, #Not1More, Blue Ribbon Commis-
sion Report on Deportation Review, April 10, 2014,
available at http://www.notonemoredeportation.
com/2014/04/10/not1morebrc/ (last accessed June
2014); National Day Laborer Organizing Network, Peti-
tion for Rulemaking Submitted to the Department of
Homeland Security (2014), available at http://images.
politico.com/global/2014/02/04/2014-02-03_ndlon_
rulemaking_petition_circ.html; American Civil Liberties
Union, Recommendations to DHS; United We Dream,
United We Dream Calls on Obama to Stop Deporta-
tions, Cost of Inaction is Devastating Our Communities,
Press release, available at http://unitedwedream.org/
press-releases/united-dream-calls-obama-stop-depor-
tations-cost-inaction-devastating-communities/.
91 National Immigration Law Center, How the Obama
Administration Can Use Executive Authority.
92 Congressional Research Service, Analysis of June 15,
2012 DHS Memorandum.
93 Compare, for example, the 19 members of Congress who
signed onto a letter from Rep. Steve Stockman (R-TX)
calling for no conference between the Senate and the
House on immigration reform, to the 199 co-sponsors
of H.R. 15. Border Security, Economic Opportunity, and
Immigration Modernization Act of 2013; Personal com-
munication from Rep. Stockmans Congressional Ofce,
Washington D.C., March 31, 2013; Van Le, Rep. Steve
Stockman Asking Boehner to Oppose Any Conference
With Senate on Immigration,Americas Voice Blog, Sep-
tember 19, 2013, available at http://americasvoice.org/
blog/rep-steve-stockman-asking-boehner-to-oppose-
any-conference-with-senate-on-immigration/.
94 Wolgin and Galvan, Immigration Polling Roundup;
Latino Decisions, Center for American Progress Action
Fund / Latino Decisions Immigration Poll / June 2014.
95 (Legacy) Immigration and Naturalization Service,
Operations Instructions, O.I. 103.1(a) (1) (ii) (1975).
96 U.S. Department of Homeland Security, Secretary Na-
politano Announces Deferred Action Process for Young
People Who are Low Enforcement Priorities, Press re-
lease, June 15, 2012, available at https://www.dhs.gov/
news/2012/06/15/secretary-napolitano-announces-
deferred-action-process-young-people-who-are-low.
97 U.S. Department of Homeland Security, Deferred
Action for Childhood Arrivals, available at https://
36 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
www.dhs.gov/deferred-action-childhood-arrivals (last
accessed March 2014).
98 The Development, Relief, and Education for Alien Minors
Act, S. 1291, 107 Cong. 1 sess. (Government Printing
Ofce, 2001); The Development, Relief, and Education
for Alien Minors Act of 2009, S. 729, 111 Cong., 1 sess.
(Government Printing Ofce, 2011).
99 Jefrey S. Passel and Mark Hugo Lopez, Up to 1.7 Mil-
lion Unauthorized Immigrant Youth May Beneft from
New Deportation Rules (Washington: Pew Hispanic
Center, 2012), available at http://www.pewhispanic.
org/2012/08/14/up-to-1-7-million-unauthorized-immi-
grant-youth-may-beneft-from-new-deportation-rules/.
100 U.S. Citizenship and Immigration Services, Immigration
and Citizenship Data, available at http://www.uscis.
gov/tools/reports-studies/immigration-forms-data/
individual-applications-and-petitions/data-individual-
applications-and-petitions (last accessed June 2014).
101 Note that research suggests that, in spite of these strong
numbers, the geography of success when it comes to
DACA implementation is not uniform across states and
not all national origin groups are benefting equally.
For more information, see Tom K. Wong and others,
Undocumented No More: A Nation-wide Analysis of
Deferred Action for Childhood Arrivals, or DACA(Wash-
ington: Center for American Progress, 2013), available
at http://americanprogress.org/issues/immigration/
report/2013/09/20/74599/undocumented-no-more/;
Marshall Fitz, Patrick Oakford, and Ann Garcia, The Early
Success of Deferred Action for Childhood Arrivals Policy,
Center for American Progress, October 26, 2012, avail-
able at http://americanprogress.org/issues/immigration/
news/2012/10/26/43051/the-early-success-of-the-
deferred-action-for-childhood-arrivals-policy/.
102 A Global Strategy Group and Basswood Research poll,
for example, found that 90 percent of Democrats and
independents, and 81 percent of Republicans support
a path to citizenship for DREAMers. Kate Hansen, New
Poll: Voters Across the Political Spectrum Support Immi-
gration Reform, FWD.us, February 12, 2014, available at
http://www.fwd.us/poll_support_immigration_reform.
103 Moreover, in 2010, the House passed the DREAM Act in
a 216198 vote. For more information, see CNN, House
approves DREAM Act, but Senate approval uncertain;
Hansen New Poll; U.S. Senate, U.S. Senate Roll Call
Votes 113
th
Congress - 1
st
Session, available at http://
www.senate.gov/legislative/LIS/roll_call_lists/roll_call_
vote_cfm.cfm?congress=113&session=1&vote=00168
(last accessed March 2014).
104 Juan Carlos Guzman and Raul C. Jara, The Economic
Benefts of Passing the DREAM Act (Washington:
Center for American Progress, 2012), available at
http://americanprogress.org/issues/immigration/
report/2012/09/30/39567/the-economic-benefts-of-
passing-the-dream-act/.
105 Karthick Ramakrishnan and Pratheepan Gulasekaram,
Understanding Immigration Federalism in the United
States (Washington: Center for American Progress,
2014), available at http://americanprogress.org/issues/
immigration/report/2014/03/24/86207/understanding-
immigration-federalism-in-the-united-states/.
106 Letter from Janet Napolitano to David V. Aguilar,
Alejandro Mayorkas, and John Morton, June 15, 2012,
available at http://www.dhs.gov/xlibrary/assets/s1-
exercising-prosecutorial-discretion-individuals-who-
came-to-us-as-children.pdf.
107 As additional groups are granted deferred action, it
would behoove the administration to study the suc-
cesses and shortcomings of the existing DACA program
in order to guide outreach to potential benefciaries.
For more information, see Wong and others, Undocu-
mented No More.
108 INA 212(d)(5)(A).
109 Thomas Alexander Aleinikof and others, Immigration
and Citizenship: Process and Policy (Eagan, MN: West
Publishing Co., 2012).
110 U.S. Citizenship and Immigration Services, Policy Memo-
randum 602-0091: Parole for Spouses, Children, and Par-
ents of Active Duty Members of the U.S. Armed Forces, the
Selected Reserve of the Ready Reserve, and Former Mem-
bers of the U.S. Armed Forces or Selected Reserve of the
Ready Reserve (U.S. Department of Homeland Security,
2013), available at http://www.uscis.gov/sites/default/
fles/USCIS/Laws/Memoranda/2013/2013-1115_Pa-
role_in_Place_Memo_.pdf.
111 INA 212 (a)(9)(B).
112 Aleinikof and others, Immigration and Citizenship; U.S.
Department of Homeland Security, Secretary Napoli-
tano Announces Humanitarian Parole Policy for Certain
Haitian Orphans, Press release, January 18, 2010,
available at http://www.dhs.gov/news/2010/01/18/
secretary-announces-humanitarian-parole-policy-
certain-haitian-orphans; Arthur C. Helton, Immigration
Parole Power; Toward Flexible Responses to Migration
Emergencies, Interpreter Releases 71 (47) (1994): 1,638.
113 See U.S. Citizenship and Immigration Services, Policy
Memorandum PM-602-0091.
114 Pew Hispanic Center, Modes of Entry for the Unauthor-
ized Migrant Population.
115 Under the statute, parole is only available to applicants
for admission. See 8 U.S.C. Sec 1182(d)(5)(A). And
individuals who entered the United States without
inspection are considered applicants for admission. For
more information, see 8 USC Sec 1225(a)(1). Whereas
individuals who overstay their visas have been formally
admitted to the United States and are therefore ineli-
gible for parole.
116 Ibid.
117 See United States v. Curtiss-Wright Export Corp., 299 U.S.
304, 320 (1936); Arizona v. United States 132 U.S. 2492,
2499 (2012).
118 See, for example, Charles B. Keely, Robert W. Tucker,
and Linda Wrigley, Immigration and U.S. Foreign Policy
(Boulder, CO: Westview Press, 1990).
119 EVD has been granted to nationals of Cuba, Dominican
Republic, Czechoslovakia, Chile, Cambodia, Vietnam,
Laos, Lebanon, Ethiopia, Uganda, Iran, Nicaragua,
Afghanistan and Poland. U.S. House of Representa-
tives, Committee on the Judiciary, Subcommittee on
Immigration and Claims, Designations of Temporary
Protected Status and Fraud in Prior Amnesty Programs,
March 4, 1999, available at http://commdocs.house.
gov/committees/judiciary/hju59871.000/hju59871_0.
htm (last accessed June 2014).
120 Deferred enforced departure, or DED, relief was
exercised by President George W. Bush in 2007, and
extended by President Obama in 2009 for certain
nationals of Liberia. For more information, see U.S.
Department of Homeland Security, Fact Sheet: Libe-
rians Provided Deferred Enforced Departure. Also see
U.S. Citizenship and Immigration Services, Deferred
Enforced Departure.
37 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
121 Letter from the Ofce of Field Operations to regional
directors and others, December 23, 1997, available at
http://www.ice.gov/doclib/foia/dro_policy_memos/
deferredenforceddepartureforcertainhaitiannalion-
als12231997.pdf.
122 Immigration and Naturalization Service, Expiration of
Deferred Enforced Departure for Nationals of El Salva-
dor, Federal Register 59 (233) (1994), available at http://
www.gpo.gov/fdsys/pkg/FR-1994-12-06/html/94-
30088.htm.
123 Executive authority granting deferred enforced depar-
ture was also exercised by President George H.W. Bush
for Chinese nationals in the wake of Tiananmen Square
events. For more information, see Executive Order no.
12,711, Code of Federal Regulations, title 8, sec. 245,
(1990-1994), available at http://www.uscis.gov/ilink/
docView/FR/HTML/FR/0-0-0-1/0-0-0-30133/0-0-0-
39631/0-0-0-39863.html.
124 Unlike Temporary Protected Status, or TPSa congres-
sional enactment that superseded EVD, but that grants
many of the same benefts such as temporary legal
status and the ability to apply for a work permitDED
is not limited by statutory restrictions governing when
it can be granted. TPS, by contrast, can only be granted
to nationals of a foreign country, who are already in the
United States, where conditions exist such that those
individuals cannot return safely to their country of
origin or in circumstances where their country of origin
is unable to adequately handle their return, such as was
the situation in Haiti following the 2010 earthquake.
For more information, see U.S. Citizenship and Immigra-
tion Services, Temporary Protected Status, available
at http://www.uscis.gov/humanitarian/temporary-pro-
tected-status-deferred-enforced-departure/temporary-
protected-status#What%20is%20TPS (last accessed
March 2014).
125 Michael Hoefer, Nancy Rytina, and Bryan Baker, Esti-
mates of the Unauthorized Immigrant Population Re-
siding in the United States: January 2012 (Washington:
U.S. Department of Homeland Security, 2013), available
at https://www.dhs.gov/publication/estimates-unau-
thorized-immigrant-population-residing-united-states-
january-2011.
126 Passel and others, Population Decline of Unauthorized
Immigrants Stalls, May Have Reversed.
127 By contrast, designation of another country could
lead to only a de minimis impact in terms of easing
deportation pressures; for example, according to DHS,
Salvadoran nationals made up just 6 percent of the
undocumented population in 2011. Hoefer and others,
Estimates of Unauthorized Immigrant Population
Residing in the United States: January 2011.
128 Taylor and others, Unauthorized Immigrants; Jefrey
S. Passel and DVera Cohn, A Portrait of Unauthorized
Immigrants in the United States (Washington: Pew
Hispanic Center, 2009), available at http://www.pe-
whispanic.org/2009/04/14/a-portrait-of-unauthorized-
immigrants-in-the-united-states/.
129 Meissner and others, Immigration Enforcement in the
United States.
130 (Legacy) Immigration and Naturalization Service,
Operations Instructions, O.I. 103.1(a) (1) (ii) (1975).
131 U.S. Senate, U.S. Senate Roll Call Votes 113
th
Congress
- 1
st
Session; Ofce of Management and Budget, State-
ment of Administration Policy: S. 744Border Security
Economic Opportunity, and Immigration Modernization
Act (Executive Ofce of the President, 2013), available
at http://www.whitehouse.gov/sites/default/fles/omb/
legislative/sap/113/saps744s_20130611.pdf; Wolgin
and Galvan, Immigration Polling Roundup.
132 U.S. Citizenship and Immigration Services, Green Card
for a Haitian Refugee, available at http://www.uscis.
gov/green-card/other-ways-get-green-card/green-
card-haitian-refugee (last accessed June 2014).
133 U.S. Citizenship and Immigration Services, Green Card
Through the Legal Immigration Family Equity (LIFE)
Act, available at http://www.uscis.gov/green-card/
other-ways-get-green-card/green-card-through-
legal-immigration-family-equity-life-act (last accessed
June 2014); letter from Bruno and others to multiple
congressional requesters.
134 U.S. Citizenship and Immigration Services, Immigra-
tion Through the Nicaraguan Adjustment and Central
American Relief Act (NACARA) Section 203, available at
http://www.uscis.gov/humanitarian/refugees-asylum/
asylum/immigration-through-nicaraguan-adjustment-
and-central-american-relief-act-nacara-section-203
(last accessed June 2014).
135 Congressional Budget Ofce, Cost Estimate of S744
Border Security, Economic Opportunity, and Immigra-
tion Modernization Act.
136 Philip E. Wolgin, Beyond National Origins: The
Development of Modern Immigration Policymaking,
1948-1968, Ph.D. Dissertation, University of California,
Berkeley, 2011.
137 See Kalina Brabeck and Qingwen Xu, The Impact of
Detention and Deportation on Latino Immigrant Chil-
dren and Families: A Quantitative Exploration, Hispanic
Journal of Behavioral Sciences 32 (2010): 341361;
Joanna Derby, The Burden of Deportation on Children
in Mexican Immigrant Families, Journal of Marriage and
Family 74 (4) (2012): 829845.
138 Taylor and others, Unauthorized Immigrants.
139 Ibid.
140 Latino Decisions, NALEO, and Americas Voice Education
Fund, Survey of Latino Undocumented Immigrants
(2013).
141 Passel and Cohn, A Portrait of Unauthorized Immi-
grants in the United States.
142 Capps and others, A Demographic, Socioeconomic,
and Health Coverage Profle of Unauthorized Im-
migrants in the United States. Martin and Taylor, Ripe
with Change: Evolving Farm Labor Markets in the
United States, Mexico, and Central America.
38 Center for American Progress | What the President Can Do on Immigration If Congress Fails to Act
143 Agricultural Job Opportunity, Benefts, and Security Act of
1998, S. 2337, 105 Cong. 2 sess. (Government Printing
Ofce, 1998), available at https://www.govtrack.us/
congress/bills/105/s2337; Agricultural Job Opportunity,
Benefts, and Security Act of 1999, S. 1814, 106 Cong. 1
sess. (Government Printing Ofce, 1999), available at
https://www.govtrack.us/congress/bills/106/s1814;
Agricultural Job Opportunity, Benefts, and Security Act of
2000, H.R. 4056, 106 Cong. 2 sess. (Government Printing
Ofce, 2000), available at https://www.govtrack.us/
congress/bills/106/hr4056; Agricultural Job Opportunity,
Benefts, and Security Act of 2001, S. 1161, 107 Cong. 1
sess. (Government Printing Ofce 2001), available at
https://www.govtrack.us/congress/bills/107/s1161;
Agricultural Job Opportunity, Benefts, and Security Act of
2003, H.R. 3142, 108 Cong. 1 sess. (Government Printing
Ofce, 2003), available at https://www.govtrack.us/
congress/bills/108/hr3142, and S. 1645, 108 Cong. 1
sess. (Government Printing Ofce, 2003), available at
https://www.govtrack.us/congress/bills/108/s1645;
Agricultural Job Opportunity, Benefts, and Security Act of
2004, S. 2823, 108 Cong. 2 sess. (Government Printing
Ofce, 2004), available at https://www.govtrack.us/
congress/bills/108/s2823; Agricultural Job Opportunities,
Benefts, and Security Act of 2005, H.R. 884, 109 Cong. 1
sess. (Government Printing Ofce, 2005), available at
https://www.govtrack.us/congress/bills/109/hr884, and
S. 359, 109 Cong. 1 sess. (Government Printing Ofce,
2005), available at https://www.govtrack.us/congress/
bills/109/s359; Comprehensive Immigration Reform Act
of 2006, S. 2612, 109 Cong. 2 sess. (Government Printing
Ofce, 2006), available at https://www.govtrack.us/
congress/bills/109/s2612#summary; AgJobs Act of 2007,
H.R. 371, 110 Cong. 1 sess. (Government Printing Ofce,
2007), available at https://www.govtrack.us/congress/
bills/110/hr371, https://www.govtrack.us/congress/
bills/110/s237, and S. 237, 110 Cong., 1 sess. (Govern-
ment Printing Ofce, 2007), available at https://www.
govtrack.us/congress/bills/110/s340; AgJOBS Act of
2009, H.R. 2424, 111 Cong. 1 sess. (Government Printing
Ofce, 2009), available at https://www.govtrack.us/con-
gress/bills/111/hr2414, and S. 1038, 111 Cong. 1 sess.
(Government Printing Ofce, 2009), available at https://
www.govtrack.us/congress/bills/111/s1038; CIR Act of
2010, S. 3932, 111 Cong. 2 sess. (Government Printing
Ofce, 2010), available at https://www.govtrack.us/
congress/bills/111/s3932#summary; Comprehensive Im-
migration Reform Act of 2011, S. 1258, 112 Cong. 1 sess.
(Government Printing Ofce, 2011), available at https://
www.govtrack.us/congress/bills/112/s1258#summary;
CIR ASAP Act of 2013, H.R. 3163, 113 Cong. 1 sess.
(Government Printing Ofce, 2013), available at https://
www.govtrack.us/congress/bills/113/hr3163#summary.
144 The New York Times, Farms and Immigrants,
May 16, 2009, available at http://www.nytimes.
com/2009/05/16/opinion/16sat2.html?_r=1&.
145 Adriana Kugler and Patrick Oakford, Comprehensive
Immigration Reform Will Beneft American Workers
(Washington: Center for American Progress, 2013),
available at http://americanprogress.org/issues/im-
migration/report/2013/09/12/74014/comprehensive-
immigration-reform-will-beneft-american-workers/;
Menjvar and Abrego, Legal Violence in the Lives of
Immigrants.
146 Taylor and others, Unauthorized Immigrants.
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